Posted by: Patricia Salkin | April 9, 2013

NY Appellate Court Upholds ZBA Determination that Deck for Outside Dining Was Incidental to Marina Use

The Town of Hempstead challenged a determination of its zoning board of appeals which granted a special permit to allow the use of a deck above a waterway for the outside consumption of food subsequent to the Town’s refusal to grant a permit for such use. The appellate court noted that the board’s determination was not illegal, had a rational basis and was not arbitrary or capricious. Further, the Court concluded that the evidence in the record supported the conclusion that the proposed use was “merely incidental” to the existing permissible marina use.

Town of Hempstead v Board of Appeals of the Town of Hempstead, 2012 WL 1319372 (N.Y.A.D. 2 Dept. 4/3/2013)

The opinion can be accessed at:


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